NEW OPTIMISM IN IMPACT FEE CASE

The Federal lawsuit brought by the casinos which is holding up the release of the Impact Fee monies to the tracks and the purse accounts took a turn for the positive this week when the 7th Circuit Court of Appeals in Chicago conducted an en banc rehearing of the case.

Previously, the trial court in this lawsuit dismissed the case based upon a finding of the lack of federal jurisdiction to hear the matter. On March 14, 2011, however, a three-judge panel of the 7th Circuit reversed the trial court decision and ruled in favor of the casinos to allow the case to go to trial.

The tracks\' attorneys requested the en banc rehearing which was granted. An en banc rehearing is reserved for reviewing decisions that affects the uniformity of the court\'s decisions or involves a question of exceptional importance.  As such, en banc rehearings are not granted often. In this case, a panel of 8 Appellate Judges heard oral arguments on May 10, 2011 including the three Judges who heard the original appeal.

En banc hearings are usually held to correct a mistake made by the court. While it appeared that the two Judges that originally ruled against us had not changed their positions, the lines of questioning by the other Judges, along with the fact that the rehearing was being held at all, lends optimism to receiving a different result this time.

The Court took this matter under advisement and will issue a ruling at a later date.  The first panel took more than a year to issue its opinion. Hopefully, since the issues have been narrowed to one, the 7th Circuit will issue a decision on the rehearing a lot sooner than before.

A favorable decision will likely not end the case but will get us a lot closer to a finish with a greater likelihood of ultimate success if appeal is made to the U.S. Supreme Court.

Glen E. Berman                                              Michael B. Campbell

Executive Director & General Counsel                                  President